In my previous posts, I have identified three mechanisms of accountability and constraint. In this final post, I focus on a fourth such mechanism, one that is often ignored by legal scholars but one that might actually be the most important of all: the role that organizational structure and institutional culture play in creating a context where public values are likely to be internalized within groups.

To illustrate what I mean, consider one of the uniformed military lawyers I interviewed shortly after he returned from being embedded with a combat brigade. This lawyer told me how important it is that “lawyers sit in the room” when combat decisions are made. He emphasized that, “when there’s a military decision-making process in place, the lawyer should be there. If you are involved, everyone can see the value added. The staff and the commander see you as part of the team rather than a weenie lawyer.” Another lawyer recounts, “My brigade commander was brilliant, and he expected alternative views … If an IED [improvised explosive device] went off, and we were going to respond, he wanted to know, ‘Is it a good shoot or a bad shoot? … [And if] I had concerns, he listened to me.”

These and other interviews I conducted with uniformed military lawyers illustrate the critical role that these lawyers play on the battlefield in supporting an organizational structure and institutional culture that fosters respect for core public values. The existence of accountability agents, such as uniformed military lawyers, is important. So too is the fact that these lawyers are integrated with operational employees (they comingle with troops and serve on the commander’s staff), they are committed to the core values at stake, they are at least somewhat independent within their own culture (a lawyer who doesn’t see eye to eye with a commander can seek “top cover” by talking to the lawyer assigned to that commander’s commander), and they can recommend that a commander invoke the military justice system in cases of abuse.

As I note in the book:

Military lawyers, embedded with troops in combat and consulting regularly with commanders, have internalized and seek to operationalize the core values inscribed in the international law of armed conflict, in particular the imposition of limits on the use of force. To be sure, the lawyers are not always successful, and it would be simplistic to assume that their accounts prove that the U.S. military always obeys international law. But their stories support the idea that the presence of lawyers on the battlefield can—at least sometimes—produce military decisions that are more likely to comply with international legal norms….

Security firms, by contrast, do not have a comparable organizational structure and culture. Of course, I did not have equivalent access to conduct comparable interviews with the employees of such firms. But the interviews I was able to conduct strongly suggest that the firms do not have a similar role for accountability agents, (whether lawyers or some other type of accountability agent) in the field. As I note in the book:

Contractors largely fall outside this organizational accountability framework. While they may receive some training in the rules regarding the use of force, that training does not typically include updated advice on the battlefield about how the rules apply in specific scenarios likely to arise on that battlefield. Contractors also do not receive ongoing situational advice from military lawyers .… Finally, the accountability system that has applied to troops has not, at least until recently, been extended to contractors. Thus… many crucial, though subtle, mechanisms of compliance with public values are significantly weakened in the privatization process…

In the book I suggest two responses to this problem. The first is to give the uniformed lawyers more of a role in advising contractors. They might conduct more training of contractors authorized to use force and provide consultation or supervision in the field. And they might take a more active role in recommending punishment from within the military justice system for contractors accused of committing abuses. Indeed, Congress enacted legislation several years ago that expanded the power of military courts to try contractors, and the Court of Appeals for the Armed Forces is currently considering the constitutionality of this legislation.

Yet such a solution is not sufficient. Even assuming military trials of certain types of contractors are constitutional, some within the military have been reluctant to take on this kind of expanded authority, leading some commentators to describe it as “the gift the military didn’t want.” My sense is that many within the military view the option primarily as a backstop against failure by civilian authorities to handle cases. They also worry about the expanded resources required to exercise greater authority over contractors. Furthermore, in conflict zones such as Iraq, in which we maintain contractors but the military has pulled out, this solution is not really feasible.

Thus, I think a second approach is also crucial. Here I think we need to encourage firms to develop robust professionalized rule-of-law cultures. Specifically, I believe we should require the contract firms themselves to install internal accountability agents with a role at least comparable to that of the uniformed lawyers in the military. Perhaps the decision by Academi (formerly Blackwater) to appoint former Attorney General John Ashcroft as their lead ethics agent is a step in this direction. The International Code of Conduct certification process I described in my previous post could also foster such developments.

February 9, 2018Is International Law International? Continuing the Conversation[This is the last post in our joint symposium with EJIL:Talk! on Anthea Roberts' new book Is International Law International? If you missed any earlier posts here on OJ, all of them are linked at the end of this post. Please be sure to continue th...

February 9, 2018Is International Law....Law?
One of the many reasons I am so pleased that Opinio Juris can host this discussion on Anthea Roberts’ new (and award-winning) book is that it speaks directly to and about this blog’s core audience: students, scholars, and practitioners of interna...

February 8, 2018On Is International Law International? ‒ Where Next?[Paul Stephan is the John C. Jeffries, Jr., Distinguished Professor of Law and John V. Ray Research Professor of Law at the University of Virginia.]
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